JUDGMENT 1. - This appeal is directed against the judgment of the Sessions Judge, Jhalawar dated 31.7.87 by which appellants. Pratap Singh, Sujan Singh & Gopal Singh have been found guilty of the offence under Section 302/34, IPC, and sentenced to imprisonment for life with a fine of Rs. 50/- each (in default, 15 days R.I.). 2. Briefly stated the facts of the case are that on a report lodged by Kalu Singh (deceased) on 5.10.85 at about 6.20 AM. at police station Gangdhar (Jhalawar district) in respect of an incident said to have taken place on 4.10.85 at about 6-6.30 P.M. in village Kachnara, a criminal case for the under Section 307, IPC was registered against the appellants for the injuries on the person of Kalusingh. The case, upon the death of Kalu Singh due to the injuries on his person, was subsequently converted into for the under Section 302, IPC. According to the version in the F.I.R. there was some enmity in between Pratap Singh and Kalusingh (deceased), and on the date of occurrence when Kalusingh (deceased) was returning from his field then in the way, all the three appellants duly armed with weapons like Kalpawali stick' & simple lathi surrounded Kalusingh and thereupon inflicted injuries on his body thereby Kalusingh fell down and the appellants named in the report fled away from the scene of occurrence. After one hour of the incident, it is alleged brother of the informant namely Pratap Singh and three persons of the village came at the place of occurrence in search of the informant (Kalusingh). As per the version given out in the F.I.R., the informant did not know whether any person was present at the place of incident or had witnessed the occurrence. 3. Kalu Singh (informant) died in the hospital on 6.10.1985. The police submitted a challan against the accused-appellants after usual investigation. The appellants were charged with the of Section 302/34. IPC. Prosecution examined in all 12 witnesses and produced documents in order to substantiate the charge of . The appellants denied the charges as well as allegation levelled by the prosecution witnesses during the course of trial and therefore, in defence, four witnesses were examined and some documents were also produced. After hearing both the parties, the learned trial Court convicted & sentenced the appellants as mentioned at the very threshold of this judgment. 4. The appellants denied the charges as well as allegation levelled by the prosecution witnesses during the course of trial and therefore, in defence, four witnesses were examined and some documents were also produced. After hearing both the parties, the learned trial Court convicted & sentenced the appellants as mentioned at the very threshold of this judgment. 4. We have heard the learned counsel for the parties and after having browsed through the entire record, in our view, first a brief narration of salient facts from the evidence on record will help delineate the forensic controversy. 5. Dr. Ramesh Chandra Khatik (PW 1) the then Medical Officer Incharge Government Dispensary, Gangdhar (Jhalawar) who, on 5.10.85 medically examined the injuries on the person of Kalu Singh and gave injury report (Ex. P. 1). deposed that he found in all 27 injuries on the person of Kalu Singh. The doctor (PW 1) in his statement recorded on 4.9.86 did not state anything about dying declaration. But, when he was recalled by the trial Court and again examined on 13.5.1987 he (PW 1) deposed that he also recorded dying declaration of Kalusingh (deceased) and deduced in writing which was in original sent to the concerned Magistrate- copy of which was retained by him (PW 1) which was marked as Ex. P-718. The witness (PW 1) produced receipts (Ex. P. 19) (Ex. P. 20). 6. Kanhiyalal (PW 2) is a witness of site plan and seizure memo of blood stained articles. Shyamlal (PW 3) Purshottam (PW 4)are formal witnesses in respect of despatch of sealed articles to Rajasthan Forensic Science Laboratory. Sobhagh Singh (PW 5) has been produced by the prosecution for the purpose of proving incident as well as dying declaration of the deceased but he did not support the prosecution and was ultimately declared hostile. Similar is the position of Nagsingh (PW 6). Chain Singh (PW 7) has also been produced for the same purpose but he did not support the prosecution too; and simply deposed that he went to the forest at the instance of his brother Nagsingh in order to search Kalusingh. Similar is the position of Nagsingh (PW 6). Chain Singh (PW 7) has also been produced for the same purpose but he did not support the prosecution too; and simply deposed that he went to the forest at the instance of his brother Nagsingh in order to search Kalusingh. According to his evidence (PW 7's), Nagsingh had told that although cattles of Kalusingh hid returned but he himself did not return to his house; therefore, they proceeded at about 9 P.M. in the night of incident to field of Kalusingh but, in the way, they found that Meharban Singh, Sobhagh Singh & Pratap Singh were bringing Kalusingh in a cot by putting cot on their shoulders and at that time he had seen a lot of injuries on the person of Kalusingh; and further that, initially, Kalusingh was brought to his house and then taken to the police station where the Station House Officer directed them to take the injured to the hospital and so, the injured was taken to the hospital where he was kept for about one or two hours because there, the doctor directed to take Kalusingh to the Hospital at Jhalawar and then they proceeded to Jhalawar Hospital where Kalu Singh had died. Chain Singh (PW 7) also deposed that the dead body was handed over to him vide Ex. P. 9, and blood stained clothes of the deceased were also seized by the police vide Ex. P. S. In his cross-examination (PW 7) Chain Singh admitted to have accompanied Kalusingh from the village to Jhalawar Hospital where Kalusingh breathed his last; and further admitted that throughout way, Kalu Singh did not at all speak nor did he ask for water. 7. Meharban Singh was produced with expectations that he would support the prosecution claiming himself to be an eye witness and a witness for the dying declaration but he did not oblige the prosecution and was ultimately declared hostile. Madan Singh (PW 9) though tried to support the prosecution to some extent on the crucial aspect of the case, viz , dying declaration, and claimed himself to be eye witness of the incident and has given details of the incident in his statement before the trial Court but he has been disbelieved by the trial Court. 8. Pratap Singh. Madan Singh (PW 9) though tried to support the prosecution to some extent on the crucial aspect of the case, viz , dying declaration, and claimed himself to be eye witness of the incident and has given details of the incident in his statement before the trial Court but he has been disbelieved by the trial Court. 8. Pratap Singh. brother of Kalusingh, (PW 10) supported the prosecution version on the point of dying declaration by stating that the report (Ex. P. 11) was lodged by his brother. Kalusingh at the police station in his presence and Kalu Singh put his thumb impression on it. Pratap Singh (PW 10) deposed that Kalusingh was taken to Gangdhar hospital from the police station and he was quite in senses; the Incharge of Gandhar Hospital made enquiries from Kailusingh about the incident. He (PW 10) also stated that there was no enmity in between Kalusingh and the accused-appellants. 9. Krishna Kant (PW 11). Incharge-Station House Officer, Police Station Gangdhar on 5.10.1985 stated that Kalusingh lodged the report (Ex. P. 11) which was written by him in hand-writing and he recorded the statememt of Kalu Singh (Ex. P. 12) and the blood stained clothes of the injured were seized. The witness (PW 11) further deposed that Kalusingh was sent to Jhalawar hospital on the direction of the Medical Officer. Govt Dispensary, Gangdhar. According to him the investigation was handed over to Kanhiyalal (PW 2) and on 19.10.85 again the investigation was conducted by him. 10. Dr. Rameshwar Vijay (PW 12) who conducted post-mortem on the dead body of Kalu Singh and gave report (Ex. P. 16), deposed that the injuries on the person of Kalusingh were 27 in numbers-some of which were dangerous in nature, that after sustaining such dangerous injuries, a person might become unconscious just after infliction, and that unconsciousness might continue for hours together. Dr. Vijay (PW 12) also deposed that after the death of Kalusingh, information letter (Ex. P. 17) was sent to Jhalawar Police Station. The witness (PW 12) further deposed that the deceased was sent from Gangdhar and was admitted in Jhalawar Hospital at about 10.40 P.M. on 5.I0.1985 and expired at 4.30 A M. on 6.10.85. Dr. Vijay (PW 12) also deposed that after the death of Kalusingh, information letter (Ex. P. 17) was sent to Jhalawar Police Station. The witness (PW 12) further deposed that the deceased was sent from Gangdhar and was admitted in Jhalawar Hospital at about 10.40 P.M. on 5.I0.1985 and expired at 4.30 A M. on 6.10.85. In his cross-examination the witness (PW 12) admitted that Chainsingh s/o Dhansingh resident of Kachaara was with the deceased and that if an injury is caused by a blunt object then the same could not take shape or impression so as to say that the same is caused by sharp object. 11. Having benefited from the enlightments quoted above derived from the evidence on record, and after having browsed through the impugned judgment of the trial Court, in our view, it is explicitly clear that only evidence on which the learned trial Court based its findings of conviction against the appellant, is of the dying declaration alleged to have been deduced in writing in the form of Ex. P. 11, Ex. P. 12. & Ex. P. 18. The evidence adduced by Madan Singh (PW 9) has been disbelieved by the trial Court. 12. Now let us turn to the forensic controversy condensed from the contentions raised by the learned counsel for the parties. During the course of arguments, learned counsel for the appellants of course admitted that Kalusingh died due to the injuries on his person and thus in this view of the matter, it would be a futile exercise to discuss the prosecution evidence on the questions as to whether Kalusingh did sustain 27 injuries and whether those injuries were sufficient in the ordinary course of nature to cause his death. From the evidence of Dr. Ramesh Chandra Khartik & Dr. Rameshwar Vijay (PW 1. & PW 12) it is clear that Kalusingh sustained 27 injuries and succumbed to his injuries. In this view of the matter, in our view only question which is to be answered in this case is as to whether the injuries found on the person of Kalusingh were inflicted by the appellants and whether they (accused) have rightly been convicted by the trial Court. For these questions the learned trial Court placed reliance on the dying declarations consisting of Ex. P. I I (FIR), Ex. P. 12 & Ex. P. 18. 13. For these questions the learned trial Court placed reliance on the dying declarations consisting of Ex. P. I I (FIR), Ex. P. 12 & Ex. P. 18. 13. The law regarding the nature and character of proof of evidence of dying declaration has been settled by several authorities of the Apex Court as also of this Court. The locus classicus of the decision of this Court is the one rendered in the case of Chittar v. State (1987 WLN (UC) P. 561 where one of us (Per S. S. Byas, J.) following the principles laid down by their Lordships of the Apex Court clearly expounded the various concomitants of the proof of a case based purely on the evidence of dying declaration and pointed out thus : (1) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (vide : Nannuraja v. State of Madhya Pradesh AIR 1976 SC 2199 ); (2) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. (vide : V. S. Mour v. State of Maharashtra AIR 1978 SC 519 ); (3) For this purpose the Court has to apply strictest scrutiny and has to be on guard to ensure that the declaration is not the result of tutoring, prompting or imagination and that the deceased had opportunity to observe and identify the assailants and was in fit state to make the declaration. (vide : Ramchandra Reddy v. Public Prosecutor AIR 1976 SC 1994 ); and (4) Where dying declaration is suspicious it should not be acted upon without corroborative evidence (vide : Rashid Beg v. State of Madhya Pradesh ( AIR 1974 SC 332 ) . 14. In view of the guiding principles, quoted above, it is thus clear that the dying declaration should he voluntary and should not be prompted one; that, maker of the statement was in a fit state of mind to give statement meaning there- by that physical as well as mental fitness of the maker is to be proved by the prosecution. It is thus clear that it is the verification of the fitness of the deponent as evident from the dying declaration and thus the verification is of importance and not the subsequent statement of the person recording the statement or present at the time. It is thus clear that it is the verification of the fitness of the deponent as evident from the dying declaration and thus the verification is of importance and not the subsequent statement of the person recording the statement or present at the time. Further, the person recording the dying declaration must satisfy himself about the fitness of the deponent to give statement. 15. In this view of the matter, primary factor which the Court has to see, is to find out whether the dying declaration is true,-if it is, no question arises. It is only if the circumstances surrounding dying declaration are not clear or convincing, then the Court may for its own assurance, look out for corroboration to the dying declaration. 16. In Munnu Raja v. State of M. P. (supra, AIR 1976 SC 2199 ) the Apex Court observed that where after making the statement before the police, the victim succumbs to his injuries the statement can be treated as a dying declaration and is admissible under Section 32 (1) of the Evidence Act (1872). The Apex Court added that the Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration. 17. In Darshan Singh v. State of Punjab ( AIR 1983 SC 554 ) , the Apex Court observed as under:- "When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it. Hence, when from the medical evidence on record it was found that the vital organs of the deceased like peritoneum stomach, and spleen were completely smashed, he could not be said to be in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death. Therefore, his dying declaration could not be relied upon for any purpose and had to be excluded from consideration." 18. Keeping these principles (ut supra) in view, forensic question remained for consideration before us in this case are : whether the dying declarations relied upon by the trial Court were voluntary and without being tutored or prompted one and whether Kalusingh (deceased) was fit to give statement. 19. Keeping these principles (ut supra) in view, forensic question remained for consideration before us in this case are : whether the dying declarations relied upon by the trial Court were voluntary and without being tutored or prompted one and whether Kalusingh (deceased) was fit to give statement. 19. As regards the statement of Kalusingh (Ex. P. 18) in the form of alleged dying declaration recorded by Dr. Ramesh Chandra Khatik (PW 1), Shri A K. Gupta, learned counsel for the appellants voiceforcely contended that it is a planted document, and according to him, in the facts and circumstances on record, no dying declaration was ever recorded by Dr. R. C. Khatik (PW 1). On the other hand, learned Public Prosecutor urged that there is nothing material to doubt the correctness of Ex. P. 18. 20. As pointed out above, Dr. R. C. Khatik (PW 1) in his statement before the trial Court on 4.9.1986 nowhere asserted that he had also recorded a statement of the deceased, and it is further apparent from a bare perusal of his statement that not even a single question was put by the Public Prosecutor for such statement; and in his statement of 4th September, 1986. Dr. Khatik (PW 1) merely deposed about the injury on the person of Kalu Singh. and mentioned the date on which Kalu Singh was brought to his hospital, and referred to Jhalawar Hospital. Undisputedly. no statement of Dr. Khatik (PW 1) under Section 161 Cr. P. C. was recorded during the course of investigation. It is an admitted position too that in the calender of witnesses filed alongwith challan, name of Dr. Khatik (PW 1) though appears to have been mentioned but in details it has not at all been mentioned that the witness (PW 1) will also say about dying declaration said to have been recorded by him. We fail to understand as to why the doctor (PW 1) did not speak even a single word with regard to dying declaration (Ex. P 18) alleged to have been recorded by him; and why a reference of statement (Ex. P. 18) has not been given in the calender of witnesses filed alongwith challan and further, why a statement of the witness (PW 1) under Section 161, Cr.P.C. has not been recorded. These circumstances and features certainly make Ex. P 18) alleged to have been recorded by him; and why a reference of statement (Ex. P. 18) has not been given in the calender of witnesses filed alongwith challan and further, why a statement of the witness (PW 1) under Section 161, Cr.P.C. has not been recorded. These circumstances and features certainly make Ex. P. 18 doubtful and affects the credibility of the dying declaration (Ex. P. 18). 21. The statement (Ex. P. 18) has been produced by Dr. Khatik (PW 1) during his subsequent statement recorded on 13.5.1987. Dr. Khatik (PW 1) was re-called by the trial Court on an application filed by the Public Prosecutor wherein it was stated that original dying declaration was sent to the Munsif Magistrate, Bhawani Mandi but it Has not traceable. No prompt attempt was ever made by the Public Prosecutor right from the presentation of challan in Court till then, to get original summoned from the concerned court where it was allegedly sent by Dr. Khatik (PW I). Apparently, in fact it was not in existence It is thus clear that before admitting the statement (Ex. P. 18) in evidence necessary logical proce- (lure laid down in the Evidence Act has also not been followed and in the absence of which secondary evidence was not at all admissible. Thus, the trial Court committed serious error in accepting dying declaration (Ex. P. 18) and in admitting the same in evidence. 22. Dr. Khatik (PW 1) in his subsequent statement recorded on 13.5.1987 deposed that original statement was sent to the Court of Munsif Magistrate Bhawani Mandi and a copy of it was retained by him. Such an action on the part of Dr. Khatik (PW 1) to retain carbon copy appears to be extraordinary because it has not ever been seen that the person recording dying declaration would have kept a copy of such statement. In the instant case, Dr. Khatik (PW I) not only alleged that he kept copy of the dying declaration but he also claimed that thumb impression of the deponent was taken on it. In the light of these strange circumstances, statement (Ex. P. 18) appears to be very suspicious and doubtful. One more reason which makes Ex. In the instant case, Dr. Khatik (PW I) not only alleged that he kept copy of the dying declaration but he also claimed that thumb impression of the deponent was taken on it. In the light of these strange circumstances, statement (Ex. P. 18) appears to be very suspicious and doubtful. One more reason which makes Ex. P. 18 as doubtful is that Chain Singh (PW 7) deposed that he accompanied the deceased from village to Jhalawar Hospital where Kalusingh breathed his last, and the dead body was handed over to him (PW 7) who in his cross-examination admitted that Kalu Singh was not speaking and did not speak after proceeding from the village. Thus apparently, Kalu Singh was not fit to give any such statement before and after start from the village. 23. As already pointed out, it is obligatory on the prosecution to prove that maker of the dying declaration was in a fit state of mind and was capable of giving details of the incident. On this aspect also, statement of Dr. Vijay (PW 12) is fatal for the prosecution because he admitted in his cross-examination that after sustaining like injuries as are mentioned in post mortem report (Ex. P. 16) prepared by him, might become unconscious just after the infliction and that state of unconsciousness might continue for long time. The doctor (PW 1) deposed that he recorded dying declaration on the request of the police-requisition which was given to him. But we may state that no such original requisition is produced in evidence from the side of prosecution. Moreover, the Investigating Officer (PW 11) nowhere in his statement deposed that he ever made any request to the witness (PW 1) for recording the dying declaration of Kalu Singh. Recording of such dying declaration (Ex. P. 18) by Dr. Khatik (PW 1) is further falsified by the circumstance that admittedly the Executive Magistrate was there in Gangadhar and no request was made to such a Magistrate. 24. Even if the statement (Ex. Recording of such dying declaration (Ex. P. 18) by Dr. Khatik (PW 1) is further falsified by the circumstance that admittedly the Executive Magistrate was there in Gangadhar and no request was made to such a Magistrate. 24. Even if the statement (Ex. P. 18) has been recorded at the request of the police as has been deposed by the doctor (PW 1 ), in that situation, compliance of Rule 6.20 of the Police Rules was necessarily to be observed by the Investigating Officer but, the same has not been observed but also no such claim has been made by the investigating Officer who did not even state about such dying declaration. It is thus clear that if, for a moment. existence of Ex. P. 18 is presumed to be admitted then in that situation it can be said that it has not been recorded in accordance with the Police Rules and that looking to the circumstances pointed out earlier. Ex.P.18 becomes doubtful and suspicious. In Ex.P.18 it has been mentioned that maker of the statement sustained injuries by blunt object-this part of the statement has been verified by the evidence of doctors. As per the medical evidence the deceased also received by sharp object the injuries on his vital organs like occipital region, vertcbree, scapula. eye, ear and he could not be said to be in a fit state of mind and body to make any kind of coberent or credible statement relating to the circumstances which resulted in his death. Thus, in these circumstances, statement (Ex. P. 18) cannot be acted upon at all. Similarly, the infirmities which crept in creating Ex. P. 18 as doubtful are also there in statement of Kalu Singh recorded under Section 161. Cr. P.C. If this statement under Section 161, Cr. P.C. is treated as dying declaration then definitely Rule 6.20 of the Police Rules should have been followed. This statement (Ex. P. 12) was recorded by Krishna Kant (PW 11) and in the light of the evidence of Dr. Khatik (PW 1) & Dr. Vijay (PW 12) (ut supra), we are not prepared to accept Ex. P 11 as a document of dying declaration because. from a bare perusal of Ex. This statement (Ex. P. 12) was recorded by Krishna Kant (PW 11) and in the light of the evidence of Dr. Khatik (PW 1) & Dr. Vijay (PW 12) (ut supra), we are not prepared to accept Ex. P 11 as a document of dying declaration because. from a bare perusal of Ex. P. 11 it is clear that it was not the deceased who could have looking to his 27 injuries and its nature on vital organs, given such a detailed information relating to the circumstances which results in his death to the police. Thus, in these circumstances there was no occasion for Kalusingh to have lodged first information report and to give dying declaration even when his brother, Chain Singh & Pratap Singh evidently are stated to have been with the injured at Police Station Gangdhar. In the light of the statement of Chain Singh (PW 7) there was no occasion for Kalusingh to have given any information and statement at the police station (Ex. P. 11 and P. 12). Chain Singh (PW 7) also deposed that Pratap Singh (brother of the deceased) was left behind at the village and he did not accompany with Kalusingh upto Jhalawar hospital as is apparently and evidently corroborated by the circumstance when after the death of Kalusingh at Jhalawar Hospital his dead body was handed over to Chain Singh. This shows that Pratap Singh was not present at Jhalawar Hospital alongwith his brother, Kalusingh otherwise dead body would have been handed over to him. From this circumstance adverse inference can be drawn that Ex. P. 11 & P. 12 were prepared at the instance of Pratap Singh. 25. The statements consisting of Ex. P. 11, Ex. P. 12 and Ex. P. 18 are further falsified on the ground that these statements state that there was bad blood and enmity in between the deceased and the accused-appellants and because of that enmity he was beaten by the accused-persons. This part of his statement (Kalusingh's) is falsified by his brother, Pratap Singh who deposed before the trial Court that relations between Kalusingh and the appellants were smooth and there was no enmity in between the family of the rival parties. So, in case the statement comprising in Ex. P. 11. P. 12 & Ex. This part of his statement (Kalusingh's) is falsified by his brother, Pratap Singh who deposed before the trial Court that relations between Kalusingh and the appellants were smooth and there was no enmity in between the family of the rival parties. So, in case the statement comprising in Ex. P. 11. P. 12 & Ex. P. 18 are taken into consideration then it cannot be disputed that Kalusingh had given a false statement or the statement had been concocted and fabricated, and the presumption of sanctity and proximity which is attached with the dying declaration cannot be drawn in respect of Ex.P.11, P. 12 and Ex. P. 18. 26. Looking to the number of injuries and its nature as mentioned in Ex.P.1 and Ex.P. 16/1 apart from Ex.P.16 (post mortem report) we are of the opinion that there was no possibility of claiming that Kalusingh was in a fit state of mind to give details of the incident especially when Chain Singh (PW 7) has clearly deposed that Kalusingh was neither speaking nor had spoken anything from the very beginning that is, after they proceeded from their village and reached Jhalawar hospital where Kalusingh breathed his last. In view of the circumstances (ut supra), it can safely he observed that Kalusingh was not in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death. Therefore, his alleged dying declarations (Ex. P. 11. P. 12 & P. 18) could not be reliable for any purpose muchless acted upon and further it had to be excluded from consideration. 27. As discussed above, the conviction of the appellants is based only on dying declarations (ut supra) which for the reasons stated above are excluded from consideration. In these circumstances, there is no evidence against the appellants, to sustain their conviction. 28. In view of the above discussion, we feel hesitant to uphold the conviction based on the solitary testimony in the form of the three infirm dying declarations recorded in the circumstances raising a doubt about their genuineness and truthfulness. This being the state of affairs, the judgment of the learned Sessions Judge, Jhalawar based on the dying declaration alone, cannot be sustained and the appellants deserve to be acquitted. 29. Consequently the appeal filed by Pratap Singh, Sujan Singh, Gopal Singh is allowed. This being the state of affairs, the judgment of the learned Sessions Judge, Jhalawar based on the dying declaration alone, cannot be sustained and the appellants deserve to be acquitted. 29. Consequently the appeal filed by Pratap Singh, Sujan Singh, Gopal Singh is allowed. The judgment of their conviction and sentence is set aside and they are acquitted of the charge levelled against them. They are in jail and shall be set at liberty forthwith if not required in any other case. Office to comply with immediately.Appeal allowed. *******